Pushing the limits of intellectual property

This just in from today’s New York Times — Chef Sues Over Intellectual Property (the Menu):

Sometimes, Rebecca Charles wishes she were a little less influential.
She was, she asserts, the first chef in New York who took lobster rolls, fried clams and other sturdy utility players of New England seafood cookery and lifted them to all-star status on her menu. Since opening Pearl Oyster Bar in the West Village 10 years ago, she has ruefully watched the arrival of a string of restaurants she considers “knockoffs” of her own.
Yesterday she filed suit in Federal District Court in Manhattan against the latest and, she said, the most brazen of her imitators: Ed McFarland, chef and co-owner of Ed’s Lobster Bar in SoHo and her sous-chef at Pearl for six years.
The suit, which seeks unspecified financial damages from Mr. McFarland and the restaurant itself, charges that Ed’s Lobster Bar copies “each and every element” of Pearl Oyster Bar, including the white marble bar, the gray paint on the wainscoting, the chairs and bar stools with their wheat-straw backs, the packets of oyster crackers placed at each table setting and the dressing on the Caesar salad.
Mr. McFarland would not comment on the complaint, saying that he had not seen it yet. But he said that Ed’s Lobster Bar, which opened in March, was no imitator.

This appears to be a new wave in IP litigation:

In recent years, a handful of chefs and restaurateurs have invoked intellectual property concepts, including trademarks, patents and trade dress — the distinctive look and feel of a business — to defend their restaurants, their techniques and even their recipes, but most have stopped short of a courtroom. The Pearl Oyster Bar suit may be the most aggressive use of those concepts by the owner of a small restaurant. Some legal experts believe the number of cases will grow as chefs begin to think more like chief executives.

According to the story, some chefs are having their employees sign non-disclosure agreements to protect their recipes. I can understand this. A chef’s signature food is a major part of the draw. But in part, it is the tacit knowledge and the total package that defines a good restaurant. Non-disclosure agreements and other trade secret mechanisms are difficult to utilize in that situation. Is good service a trade secret?
I also worry about the ability to spin-off new restaurants and menus. Do these agreements cover derivative works — dishes that are slightly different? Will a spin off restaurant have to pay royalties? What happens when the recipe is published in a cookbook?
A whole new area for the lawyers to explore. Let’s hope they don’t muck it up.

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